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When is a Supervisor Not a Supervisor?
In June, the US Supreme Court dealt a stunning blow to workers’ rights in Vance v. Ball State University [PDF], a case that could have a chilling impact on victims of harassment and America’s civil rights laws.
Maetta Vance worked at Ball State University as a catering assistant for the university’s dining services department. For much of her time there, she was the sole African American employee in the department. In the case, Vance alleged that a catering specialist who had the authority to direct and oversee her work created an environment of physical intimidation and racial harassment. This supervisor used racial epithets like “buckwheat” and “sambo” to refer to Vance in her presence and in the presence of other employees, and she cornered and threatened Vance on an elevator.
As is the case for too many victims of workplace harassment, when Vance reported the harassment to the university’s compliance office, little was done. The university had no policy to address racial harassment, so the harassment persisted. Vance alleged that the harassment and physical intimidation caused her to live and work in a constant state of fear.
Eventually Vance filed a federal lawsuit in the Southern District of Indiana alleging harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The district court decided against her, granting Ball State’s motion for summary judgment because it found the supervisor in question lacked the power to make tangible employment decisions like hiring or firing. The court applied the same negligence standard of liability applicable to co-worker harassment, rather than the vicarious liability standard applicable to supervisor harassment.
On appeal, the US Court of Appeals for the Seventh Circuit affirmed that decision, applying the same narrow definition of the term “supervisor.” The court concluded that the vicarious liability standard applies only to harassment by supervisors with the formal authority to make tangible employment decisions. In doing so, it joined the First and Eighth Circuits in concluding that only those supervisors with the power to fire, hire, promote, etc. should be treated as supervisors under Title VII — an overly narrow definition that defies common sense and legal precedent.
By contrast, the Second, Fourth and Ninth Circuits had previously affirmed a rule consistent with Equal Employment Opportunity Commission (EEOC) guidance on vicarious liability for unlawful harassment by supervisors. The EEOC guidance provides that “[a]n individual qualifies as an employee’s ‘supervisor’ if: the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or the individual has authority to direct the employee’s daily work activities.” Thus, three circuits and the EEOC had applied a common sense definition of supervisor to impose vicarious liability prior to the Supreme Court’s consideration of Vance.
In addition, the US Solicitor General filed an amicus brief [PDF] in Vance that affirmed this well-reasoned interpretation, concluding that “an employee who directs another employee’s daily work activities but cannot take tangible employment actions is a supervisor for purposes of vicarious liability under Title VII.”
Similarly, the National Partnership for Women & Families led a group of ten top civil and workers’ rights organizations in filing another friend-of-the-court brief [PDF] in the case that called on the Court to reject an overly restrictive definition of supervisor that failed to reflect the realities of the workplace or the Court’s previously demonstrated understanding of what it means to be a supervisor.
Indeed, the rule adopted by the Second, Fourth and Ninth Circuits, the EEOC, the Solicitor General, and petitioner Vance and her amici comports with Supreme Court precedent set 15 years ago. In the cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. In Faragher and Ellerth, the Court did not draw arbitrary distinctions between various types of supervisors; instead, it distinguished between supervisors and co-workers. The Court concluded that the standard of liability may depend on whether the harassment comes from a supervisor or a co-worker.
However, in Vance, the Court drew a new and harmful dividing line. In essence, the Court decided not to treat some types of supervisors as supervisors. The Court ruled that employers are only vicariously liable when a worker is harassed by a supervisor with the authority to take “tangible employment actions,” like decisions to hire, fire, promote, demote, etc. The Court distinguished between supervisors with the authority to take tangible employment actions and supervisors with the authority to direct work.
The Court concluded that when harassment comes from a supervisor with the authority to direct the work of the target of harassment, the employer is not liable unless there is proof of negligence. By contrast, when the harassment comes from a supervisor with authority to take tangible employment actions, victims of harassment need not show negligence on the part of the employer. In short, the decision makes it more difficult for workers to hold their employers accountable for harassment by direct supervisors — even though they are often the very supervisors who are uniquely positioned to harass due to their direct interaction with supervisees and the authority delegated to them by employers.
The Court’s narrow 5-4 majority opinion was based on the conclusion that vicarious liability is justified only when a supervisor has the authority “to inflict direct economic injury.” Writing for the majority, Justice Alito concluded that, “[t]he ability to direct another employee’s tasks is simply not sufficient” to impose vicarious liability for supervisor harassment. Justice Alito’s opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas. The Court recognized that “[e]mployees with powers [to direct work] are certainly capable of creating intolerable work environments […] but so are many other co-workers.” It argued that requiring proof of negligence, i.e., that the employer knew or should have known of the harassment and failed to properly address the conduct, “provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.” The majority conspicuously avoided calling those who direct others’ work “supervisors,” choosing instead to refer to such individuals as mere “employees.”
The majority rejected what it called “the nebulous definition of a ‘supervisor’ advocated in the EEOC guidance and substantially adopted by several courts of appeals.” In so doing, the majority chose to lump direct supervisors together with co-workers for purposes of setting the standard to determine liability.
Justice Thomas wrote a separate concurring opinion to note that he continues to believe that Faragher and Ellerth were wrongly decided, but that the majority opinion “provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment.”
In a forceful dissent joined by Justices Breyer, Sotomayor and Kagan, Justice Ginsburg argues that the rule set out by the majority is “blind to the realities of the workplace” and “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.” As she did in her dissenting opinion in the fair pay case of Ledbetter v. Goodyear Tire and Rubber Co., Justice Ginsburg again called on Congress to “correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.” At the National Partnership, we could not agree more.
To that end, workers’ rights advocates are already on the case, working with members of Congress to restore the protections from supervisor harassment that our employment discrimination laws were intended to provide. A legislative response to the Vance decision is expected to be introduced later this year.
Sarah Crawford is the director of workplace fairness programs at the National Partnership for Women & Families, where she handles issues surrounding fair pay, pregnancy discrimination, sexual harassment, equal opportunity, and other matters that impact working women and their families. She also co-chairs the Employment Task Force of the Leadership Conference on Civil and Human Rights.